At a date to be as yet confirmed (likely to be 6 April 2022), divorce law in England and Wales will catch up with most other common law jurisdictions by saying goodbye to fault-based divorce. And for almost all family law judges, barristers, solicitors, and campaign organisations, the coming into force of the Divorce, Dissolution and Separation Act (DDSA) 2020 cannot happen soon enough.
The Government called for consultation on removing the need to claim the divorce was one party’s ‘fault’ following the highly-publicised 2018 case of Owens v Owens. In this case, the Supreme Court ruled that, because the wife had not proven that her husband’s behaviour was ‘unreasonable’, she could not divorce her husband until the pair had been separated for five years.
Because so few divorces are contested, the public was shocked to discover that under English law, one spouse could force the other to remain married to them. David Gauke, the Justice Secretary at the time Owen v Owen was decided declared that divorce law in England and Wales was “out of touch with modern life”.
What are the current grounds for divorce in England and Wales?
At present, the only ground for getting a divorce is that the marriage has irretrievably broken down for one of the following reasons:
- Adultery
- Unreasonable behaviour
- Desertion
- You have lived apart for more than two years, and both agree to the divorce
- You have lived apart for at least five years, even if your husband or wife disagrees
What is are the new grounds for divorce under the DDSA 2020?
Under the DDSA 2020, neither party has to ‘blame’ the other for the marriage breaking down. Instead, one or both parties simply need to make a statement that the relationship has irretrievably broken down. There is no scope for one party to contest the divorce in order to prevent it. The Court must accept the individual’s or couple’s statement that the marriage has irretrievably broken down and make a divorce order.
Allowing for joint divorce applications provides a foundation for couples to complete divorce negotiations around the financial settlement and arrangements for children amicably.
What other changes to divorce law will come into force when the DDSA comes into force?
There DDSA 2020 makes several other changes to divorce law in England and Wales, including:
· The time between the start of proceedings and the granting of the Conditional Divorce Order (Decree Nisi) is 20 weeks. This is to allow couples ample time to make arrangements regarding their children and finances.
· The terms Decree Nisi and Decree Absolute have been replaced with Conditional Divorce Order and Final Divorce Order to make the language of the divorce process friendlier and easier to understand.
The new divorce laws will not necessarily make the process of ending your relationship any easier. However, being able to file a joint petition or filing a petition on your own without needing to list factors of unreasonable behaviour or cite adultery mitigates the risk of you and your spouse becoming hostile towards each other from the start. No one likes to be blamed for a relationship ending. Removing the need for fault to be assigned to one spouse by another is a significant step forward, bringing family law in England and Wales in line with modern expectations and other common law jurisdictions.
Should I wait until the new divorce laws come into force?
At the time of writing, no date has been set regarding the DDSA coming into force outside of the loose ‘6 April 2022’. For some people, especially in high-net-worth and/or international divorce, waiting until later in the year to start divorce proceedings may not be in their best interests.
If you are considering divorce, it is essential to speak to an experienced Family Law Solicitor.
Ending a marriage is emotionally, legally, and financially complex. Just the presence of so much change is enough to make the process highly stressful for many adults and children. A Family Lawyer can listen to your situation, help you establish what you need and want out of the divorce to secure your financial future, and advise you on every related matter, including whether you should delay filing your petition until the DDSA 2020 comes into force.
Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. We are members of Resolution, an organisation of Family Law Solicitors that abide by a Code of Practice that promotes a non-confrontational approach to family law practice.
To find out more about no-fault divorce, please phone +44 (0)20 3 983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.
